Duty to consult remains vague after pipeline decisions, says chamber

Members of the Squamish and Tsleil-Waututh First Nations gather in canoes on the waters of Burrard Inlet at the Kinder Morgan Burnaby Terminal for a ceremony to show opposition to the $5 billion expansion of the Trans Mountain pipeline, in North Vancouver, B.C., on Saturday September 1, 2012. THE CANADIAN PRESS/Darryl Dyck

Energy companies remain uncertain about their legal responsibility to consult indigenous peoples after this week’s decision to quash Enbridge Inc.’s Northern Gateway pipeline, says the Canadian Chamber of Commerce.

“It is important to remember that Enbridge did everything by the book,” said chamber President Perrin Beatty in a news release. “However, as long as there is a lack of clarity around when, how and to what degree the federal government can delegate its duty to consult with indigenous peoples, problematic situations will continue to arise.”

The duty to consult and accommodate is an legal obligation for regulators and companies that forces them to consult with indigenous communities if a project could infringe on their rights, such as the right to hunt or the right to land title. Major resources companies and indigenous governments have long complained that the federal government provides little input on how the duty to consult is supposed to be carried out.

Often, the courts are left to determine whether the duty was breached, and what should be done in response.

During his announcement, Trudeau did not say Northern Gateway, Enbridge or the regulator, the National Energy Board, failed to adequately consult indigenous communities. Cabinet’s formal declaration rejecting the project also doesn’t mention any breach of the Crown’s constitutionally-mandated duty to consult and accommodate indigenous peoples.

“The decision was based on the sensitivity of the ecosystem in that area,” said a federal official who spoke on background during a technical briefing Tuesday.

These consultations are carried out to identify potential impacts on indigenous rights and assess whether conditions imposed on the pipeline builder through the regulatory process address some of those impacts, said the official. When a pipeline project is rejected, there’s no project, so there’s no impact on rights, he said.

The lack of any formal statement on indigenous rights contradicts a Federal Court of Appeal decision in June which found the parties behind Northern Gateway had failed to adequately consult. Northern Gateway originally was approved by the federal cabinet in 2014, but the court’s decision forced it back before ministers.

In contrast with Tuesday’s Northern Gateway decision, the federal cabinet said in the case of the Trans Mountain and Line 3 approvals that “the consultation process undertaken is consistent with the honour of the Crown and that the concerns and interests have been appropriately accommodated.”

As part of the regulatory process, Natural Resources Canada released lengthy Consultation and Accommodation Reports on Trans Mountain and Line 3. The department has only recently started releasing these reports to the public after pipeline decisions are made.

The Trans Mountain report features a long list of impacts, including the name of the community consulted and the depth of the consultation that was performed. For example, NRCan said the impacts on the Cowichan Tribes’ ability to hunt, trap and gather plants was “minor” and that the consultation on those rights was in the “middle” of a spectrum of consultations.

The report refers to the measures the National Energy Board and the federal government took to seek indigenous input and change the project’s conditions. According to some of the pipeline’s 157 conditions, indigenous communities will be able to formally monitor Kinder Morgan to make sure it’s sitcking to the rules of its permit. The report also refers to Ottawa’s plans to reform the energy board and the environmental assessment process.

“The Crown recognizes that in the view of a number of potentially affected aboriginal groups, not all concerns they raised have been expressly addressed or accommodated through the NEB process,” says the report.

Trudeau was asked on Tuesday during his news conference whether the federal government thinks Trans Mountain won’t fall victim to the same legal problems that felled Northern Gateway. Justice Minister Jody Wilson-Raybould, who was also at the conference, referred to additional consultations the Liberals inserted into Trans Mountain’s regulatory process after they came to power last year.

“As a result of those consultations we entered into significant accommodation agreements with individual indigenous peoples and certainly recognize the substantive nature of those agreements in that indigenous peoples are going to be able to participate on committees to oversee the implementation of the 157 conditions,” said Wilson-Raybould.